Subject:Threat to Public Information Databases
PLEASE READ THIS:
This is going to be one of the most important fights in the
Information Age, much more important than the marginal fights over
censorship on the Internet. This decision will decide whether
companies can own previously public information and control its
distribution.
Copyright is a classic class issue of property rights and this fight
will decide whether large corporations will own large chunks of
public information. --Nathan Newman
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Info-Policy-Notes - A newsletter available from listproc@tap.org
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INFORMATION POLICY NOTES
October 29, 1996
A Primer On The Proposed WIPO Treaty On
Database Extraction Rights
That Will Be Considered In December 1996*
October 29, 1996
James Love
Consumer Project on Technology
http://www.essential.org/cpt
email: love@tap.org
*HTML version at http://www.essential.org/cpt/ip/cpt-dbcom.html
Ascii version formatted with 11 pt courier with 1 inch margins.
This is my first take on the treaty, and I would appreciate
comments and corrections. This is a very important matter that
hasn't received much attention. jl
INTRODUCTION
The World Intellectual Property Organization (WIPO) will consider in
December 1996 a new treaty that would require most countries
(including the United States) to severely curtail the public's
rights to use pubic domain materials stored in "databases." Some
experts say it is the "least balanced and most potentially anti-
competitive intellectual property rights ever created." The U.S.
Patent and Trademark Office (PTO) is accepting public comments on
this treaty, and a digital copyright treaty that is also troubling.
Comments are due by November 22, 1996, and can be submitted by
electronic mail to: diploconf@uspto.gov. Copies of the treaty,
commentary, and the PTO federal register notice is available from
http://www.public-domain.org. This memorandum provides background
information on the treaty and the problems it presents.
BACKGROUND
The database treaty is being pushed by large publishing companies,
in response to the 1991 U.S. Supreme Court decision in Feist
Publications, Inc. v. Rural Telephone Service,
[http://www.law.cornell.edu/supct/classics/499_340v.htm]. In Feist,
the Court rejected a claim of copyright for data from a telephone
directory's white pages, saying that facts cannot be copyrighted,
and that obvious items such as listing names, addresses, and
telephone numbers in alphabetical order, are not sufficiently
creative to qualify for copyright protection. The decision rejected
the "sweat of the brow" theory of copyright.
Compilations of data or documents, including materials from the
public domain, can receive protection under copyright if the creator
of the compilation can show originality in the selection and
arrangement of the data. Comprehensive databases, which can be
expensive to create, confront problems under copyright laws because
(almost by definition) they are not original in terms of the
selection of the materials.
Electronic database publishers have sought to protect their data
through contracts with their customers. These contracts often place
restrictive conditions on the reuse or redissemination of the data.
See Pam Samuelson, "Legally Speaking: Legal Protection For Database
Contents," 39 Communications of the ACM (Nov. 1996),
http://ksgwww.harvard.edu/iip/datacon.html, for a discussion about
this approach. In other cases, database vendors permit online
searching, but do not distribute the complete database itself.
Publishers are looking for stronger protection, and are lobbying
hard to obtain a new "sui generis" (this is Latin for "one of a
kind," and is a term used to describe statutory protections which
are not defined under patent, copyright or trademark laws) property
right to protect the contents of databases. The publishers' first
success was the adoption of a controversial proposal for database
extraction rights in the European Union (EU), and by gaining the
support of the Clinton Administration and the EU to propose a very
similar measure as an amendment to the Berne Copyright Convention.
The Clinton Administration also supported domestic legislation to
implement this form of data use regulation in the 104th Congress [HR
3531], but there were no hearings on the measure.
Despite the controversial and far reaching nature of the database
protection proposal and the lack of discussion on its impact in the
United States, the Clinton Administration is asking for quick
approval of the database treaty at a December 1996 meeting in Geneva
hosted by the World Intellectual Property Organization (WIPO). The
main Administration advocate in support of the publishers' position
is Bruce Lehman, Chair of the Patent and Trademark Office (PTO), a
person widely considered an intellectual property rights zealot.
THE COMPLEXITIES (AND DANGERS) IN CREATING A NEW PROPERTY RIGHT FOR
DATA
While many persons are sympathetic to the general idea of a sui
generis form of protection for databases, there is enormous concern
about the complexities of creating a new property right that has the
potential to create private monopolies on data and documents that
have traditionally been in the public domain. It is often said that
"the devil is in the details," and this is certainly true for the
database protection proposal. A handful of database vendors have
quietly crafted a proposed treaty and law that creates a nightmare
for researchers and value added publishers. In discussing the
development of the EU database proposal, J.H. Reichman and Pamela
Samuelson say that "lobbying pressures converted the final version
into one of the least balanced and most potentially anti-competitive
intellectual property rights ever created." [Intellectual Property
Rights In Data: An Assault On The Worldwide Public Interest In
Research And Development, forthcoming in Vanderbilt Law Review, 50,
on the Web at http://ksgwww.harvard.edu/iip/reisamda.html].
The database vendors have sought to vastly expand the ability of
database owners to regulate and restrict the public's rights to use
data, without the types of safeguards which exist in copyright law
today. In this respect, it is important to understand that as a
"sui generis" property right, the database extraction rights are not
part of the of the copyright regime, and the entire doctrine of fair
use of data will not apply to data protected under the proposed
database extraction rights treaty and legislation. Moreover, under
the WIPO proposal these new data rights would be retroactive,
affecting countless databases already in existence.
DIGRESSION ON WEST PUBLISHING AND THE DEFINITION OF A DATABASE
The Feist decision was particularly troubling for West Publishing, a
company that wants to maintain its monopoly on the citations and
corrected text for many court decisions.
[http://essential.org/cpt/legalinfo/legalinfo.html] West is the only
comprehensive publisher of federal circuit and district court
opinions and state court opinions from all 50 states. The page
numbers of the West court reporters are the basis for authoritative
citations used by scholars and lawyers. As a reporter of decisions,
West also makes corrections to the text of court opinions, typically
after working with the judge who wrote the opinion. West wants to
prevent others from using their page numbers or the corrected text
of court opinions, and it is often in court trying to prevent its
would be competitors from doing so.
West is now involved in at least two law suits over its assertions
of copyright of the page numbers, and one law suit over the issue of
the copyright to the text of the corrected court opinions. [See
http://www.hyperlaw.com for background on this]. Most copyright
experts think that West will lose its court case on the issue of its
page numbers, and West will also be hard pressed to claim it can
copyright the corrections to the text of court opinions --
particularly for the US federal courts, since U.S. copyright laws
exclude the works of federal employees.
Most people think that the corrected text of court opinions, and the
citations to those opinions, should be in the public domain, and
that the West monopoly has delayed the development of new
information products and services for legal researchers. No one
seriously argues that the court opinions would not be published
without a West monopoly. West is among the private sector
publishers who have successfully lobbied the EU and the Clinton
Administration to extend the database protection proposals to print
products by defining a database so broadly that it will include any
collection of facts, data, or documents regardless of the media. If
the database protection proposals are enacted, West will have a firm
monopoly on decades of judicial citations and corrections to
judicial opinions.
THE DATABASE EXTRACTION RIGHTS PROPOSAL
The August 30, 1996 version of the WIPO treaty is available on the
Web at http://www.loc.gov/copyright/wipo6.html, and it is worth
reading since it represents the most radical change in intellectual
property rights in data, ever.
WHAT IS A DATABASE? WHAT ISN'T A DATABASE?
The treaty would protect "any database that represents a substantial
investment in the collection, assembly, verification, organization
or presentation of the contents of the database." This term should
be understood "to include collections of literary, musical or
audiovisual works or any other kind of works, or collections of
other materials such as texts, sounds, images, numbers, facts, or
data representing any other matter or substance" and "may contain
collections of expressions of folklore." The "protection shall be
granted to databases irrespective of the form or medium in which
they are embodied. Protection extends to databases in both
electronic and non-electronic form" and "embraces all forms or media
now known or later developed. . . Protection shall be granted to
databases regardless of whether they are made available to the
public. This means that databases that are made generally available
to the public, commercially or otherwise, as well as databases that
remain within the exclusive possession and control of their
developers enjoy protection on the same footing."
In other words, a lot of water will go under this bridge.
WHAT ARE EXTRACTION AND UTILIZATION RIGHTS?
"The maker of a database eligible for protection under this Treaty
shall have the right to authorize or prohibit the extraction or
utilization of its contents." What is "extraction"? Extraction is
defined as, "the permanent or temporary transfer of all or a
substantial part of the contents of a database to another medium by
any means or in any form." "Extraction . . . is a synonym for
`copying' or `reproduction' . . . by `any means' or `any form'
that is now known or later developed."
"Utilization" is defined as "making available to the public all or a
substantial part of the contents of a database by any means,
including by the distribution of copies, by renting, or by on-line
or other forms of transmission," including the right to control the
use of the data "at a time individually chosen by each member of the
public."
WHAT IS A "SUBSTANTIAL PART" OF THE DATABASE?
The treaty sets out tests for determining if an extraction is
"substantial," and these tests are both highly anticompetitive, and
extremely broad in scope.
The "substantiality" of a portion of the database is assessed
against the "value of the database," and considers "qualitative and
quantitative aspects," noting that "neither aspect is more important
than the other. . . This assessment may also take into account the
diminution in market value that may result from the use of the
portion, including the added risk that the investment in the
database will not be recoverable. It may even include an assessment
of whether a new product using the portion could serve as a
commercial substitute for the original, diminishing the market for
the original."
Then the treaty adds that a "substantial part" means any portion of
the database, "including an accumulation of small portions . . .
In practice, repeated or systematic use of small portions of the
contents of a database may have the same effect as extraction or
utilization of a large, or substantial, part of the contents of the
database."
In the US implementing legislation, the only types of data use that
would not be regulated would be "insubstantial" parts, "whose
extraction, use or reuse does not diminish the value of the
database, conflict with a normal exploitation of the database or
adversely affect the actual or potential market for the database."
Under this language, a database owner could say that it might in the
future want to charge for each transmission of a fact or an element
of a database as part of its "normal exploitation" of the database.
With the Internet and digital cash this claim is likely to be made.
The public would not have "fair use" rights, since fair use is only
defined in matters involving copyright.
FOR HOW LONG? 15 YEARS, 25 YEARS, OR FOREVER?
The Treaty would require a minimum term of protection (15 years in
the EU proposal, and 25 in the United States proposal) for the
database. But this is extended each time the database is revised or
enhanced. According to the draft treaty, "any substantial change to
the database, evaluated qualitatively or quantitatively, including
any substantial change resulting from the accumulation of successive
additions, deletions, verifications, modifications in organization
or presentation, or other alterations, which constitute a new
substantial investment, shall qualify the database resulting from
such investment for its own term of protection."
The provision on revisions raises the specter that protection for
many databases will be perpetual. This could indeed be the case if
the original versions of the database are only "licensed" by the
vendor for a limited period of time, so that the only available
versions would be the new ones, which would have a new term of
protection. [Database vendors write these restricted use licenses
now].
WHO WILL "OWN" FACTS?
The supporters of the Treaty note that persons can independently
collect data for a rival database, and the US legislation says
"nothing in this Act shall in any way restrict any person from
independently collecting, assembling or compiling works, data or
materials from sources other than a database subject to this Act."
Unfortunately, this will only be helpful in those cases where there
will be a separate non-protected source for the data or documents.
If the entity which creates the initial data or documents qualifies
for the database extraction right, the data itself will be
monopolized. The example given above regarding the West Publishing
reporters of court decisions is one example, where the citations
(which are based upon the West page numbers) and the corrections to
opinions (which are only reported by West) cannot be obtained from
any third parties. But the problem is much broader than court
opinions. All sorts of data will be protected at the source under
the database treaty, and may never enter the public domain.
There are also the practical problems relating to the costs of
independent data collection. The telephone companies obtain
directory information when you become a subscriber, and it is
practically impossible to independently collect this data.
Databases of IP addressees collected by Network Solutions will be
covered, giving Network Solutions broad new rights in how that data
is utilized by ISPs.
WHAT ABOUT GOVERNMENT INFORMATION?
Much of the lobbying for the sui generis database proposal is
designed to enable database vendors to protect collections of
government documents. The treaty would permit countries to have
special rules for "databases made by governmental entities or their
agents or employees." However, this exemption will not include cases
such as the West Publishing reporting of court decisions, where West
is acting as an unofficial agent for the courts.
In the US enabling legislation, protection is not given to a
database made by a governmental entity, but protection could not be
excluded from companies if a database's "contents have been obtained
from a governmental entity." There is no provision to exempt
databases created by private parties; like West, LEXIS, and
literally thousands of other firms; when they act as contractors to
government agencies. For example, West is a contractor for some
courts in receiving electronic filing of briefs. Under the U.S.
legislation, the database of briefs collected by West for the Courts
would be protected. Likewise, the SEC EDGAR public disclosure
filings which are managed by LEXIS would be covered.
The Clinton Administration has gone to court in at least two cases
avoid releasing documents under the Freedom of Information Act
(FOIA) when West Publishing has asserted intellectual property
rights claims to elements of the data. In the FLITE case, the
Clinton administration successfully argued that it did not have to
release U.S. Court opinions collected by the Air Force at public
expense that contained West "corrections" and enhancements. (See:
http://www.essential.org/listproc/info-policy-notes/0185.html, and
the Tax Analysts page on this topic, at http://www.tax.org/pal). It
appears as though government entities will be permitted to avoid
FOIA completely if they use private contractors, and write contracts
which permit agency access to data (extraction), but do not permit
disclosure to the public. [For a discussion of an earlier
legislative initiative by West Publishing to achieve a similar
result, that was defeated after citizen protests, see:
http://www.essential.org/listproc/info-policy-notes/0137.html, and
http://www.essential.org/listproc/info-policy-notes/0139.html]
WHAT ABOUT FAIR USE RIGHTS?
As noted several times, the public has rights, often taken for
granted, under the copyright "fair use" doctrine. This includes
commercial and non-commercial fair use. The fair use rules involve
public interest balancing tests. The sui generis database proposal
doesn't include or incorporate public fair use rights. It is
difficult to know how this will play out in practice.
Under the treaty language, governments "may, in their national
legislation, provide exceptions to or limitations of the rights
provided in this Treaty in certain special cases that do not
conflict with the normal exploitation of the database and do not
unreasonably prejudice the legitimate interests of the rightholder."
The key terms here are "normal exploitation of the database," and
"legitimate interests" of the rightholder.
In the U.S. legislation, "a lawful user of a database made
available to the public or placed in commercial use is not
prohibited from extracting, using or reusing insubstantial parts of
its contents, qualitatively or quantitatively, for any purposes
whatsoever." But as noted earlier, the term "insubstantial" is
constrained by the scope of the business opportunities that are
perceived by the database vendor. Not only is "insubstantial"
limited to those uses which do not diminish the value of the
database, but insubstantial must also not "conflict with a normal
exploitation" of the database, or adversely impact the "actual or
potential" market of the database. Moreover, the "normal
exploitation" of the database seems to be defined in such a way that
the vendor can assert that a transmission of a database element on
the Internet would be an infringement if the company has a mechanism
or even aspirations to charge for the information, and the
cumulative impact of many small transactions would diminish the
value of that service.
RETROACTIVE PROTECTION
The treaty would require countries to provide protection
prospectively for databases already on the market. Countries could
exempt older databases from protection for up to two years.
PROHIBITIONS ON TECHNOLOGIES TO DEFEAT PROTECTION
As in the proposed Internet copyright treaty and legislation, the
database proposal is accompanied by very strict prohibitions against
the "importation, manufacture or distribution of protection-
defeating devices." This is defined as "any device, product or
component incorporated into a device or product, the primary purpose
or primary effect of which is to circumvent any process, treatment,
mechanism or system that prevents or inhibits any of the acts
covered by the rights under this Treaty." The US legislation
contains similar provisions, plus a whole section which would make
it a federal crime to interfere with "database management
information." Persons would face up to 5 years in jail and a
$500,000 file for doing such things as providing or disseminating
false database management information, or removing or altering any
such information. It would seem that simply tearing the cover off a
telephone book (a protected database under the treaty) be a
violation of this provision.
WHAT CAN YOU DO?
If you think this proposal needs more debate before it is forced
upon us and the rest of the world, contact your member of Congress
and submit comments to the PTO asking that the database treaty be
taken off the WIPO agenda for this December. You should point out
that there have been zero public hearings before the Congress on
this far-reaching proposal. You also might read the attached
October 9, 1996 letter in opposition to the treaty by the Presidents
of the National Academy of Sciences, the National Academy of
Engineering, and the Institute of Medicine. You will also find good
background materials at Brian Kahin's web page for the State
Department Advisory Committee on International Communications and
Information Policy at: http://ksgwww.harvard.edu/iip/intellec.html.
As noted above, you can send comments by electronic mail to:
pdiploconf@uspto.gov. They must be in by November 22, 1996. Copies
of the treaty, commentary, and the PTO federal register notice is
available from http://www.public-domain.org. Public-Domain is an
independent citizen's organization being formed to fight this
treaty, and more generally to protect the public domain in matters
concerning intellectual property.
James love
love@tap.org
http://www.essential.org/cpt
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APPENDIX
Letters of Presidents of National Academy of Sciences, National
Academy of Engineering, and Institute of Medicine in opposition to
the database treaty.
October 9, 1996
The Honorable Michael Kantor
Secretary of Commerce
Department of Commerce
14th Street and Constitution Avenue
NW Washington, D.C. 20230
Dear Mr. Kantor:
We are writing to express our serious concern about pending changes
to international and domestic intellectual property law that are
being supported by the Department of Commerce. Although we
understand that the wide availability and easy transmittal of
digital databases can present difficulties for database vendors, we
believe that the August 30, 1996 Draft Treaty on Intellectual
Property in Respect to Databases, which was prepared under the World
Intellectual Property Organization (WIPO), has the potential to
undermine our nations progress in scientific and technical research
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FIDO MESSAGE AREA==> TOPIC: 184 HOME OFFICE Ref: DF500007 Date: 11/04/96
From: STEPHEN COKER Time: 07:20pm
\/To: ALL (Read 8 times)
Subj: Line Share/Answer Machine
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* Origin: PrimeTime * Muskoka (705)689-1757 (1:252/301)
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